Like most of you, I await the release of the draft whale rules with a mixture of dread and anxiety. While no one knows for sure what alternatives NMFS will propose in the new rules, they are sure to generate much angst and controversy.
These rules have been under development for about three years, kicking off in earnest in 2017 when 17 right whales died. That year NMFS declared an Unusual Mortality Event for right whales, released its 5-Year Right Whale Review and re-initiated a Section 7 Consultation under the Endangered Species Act for a new Biological Opinion on the risk that the lobster fishery poses to endangered right whales. It was also the year we learned that the right whale population had been in decline since 2010.
It is important for lobstermen to understand that we are now three years into the development of new whale rules. That means that many of the key decisions about what is and is not possible under these rules have already been made. And in his August ruling, Judge Boasberg of the Washington, D.C. district court made it clear that if the new whale plan and Biological Opinion are not finalized by May 31, 2021, the fishery could be shut down.
“Most importantly, NMFS established a risk reduction goal of 60% and will require new whale conservation measures to achieve this level of risk reduction.”
NMFS drew some firm lines early on to guide development of these rules. Since it was abruptly announced in April 2019, the MLA has strongly opposed the 60% risk reduction target. The MLA remains concerned that this risk reduction goal overstates the share of risk attributed to the lobster fishery and downplays the role of and other commercial fisheries as well as Canadian practices. The risk reduction target was reviewed by a panel of independent reviewers in November 2019 but they did not reach consensus on the best approach.
Nevertheless, NMFS has been unwavering that new whale conservation measures must achieve a 60% risk reduction. When DMR submitted Maine’s draft whale plan to NMFS in January, the agency responded that the state’s plan may fall short of achieving a 60% risk reduction and therefore would require additional measures, such as an offshore closure.
While it is impossible to predict what will be in the draft whale rules, there are a few things that one would expect to see. First, the Proposed Rule will put forward more than one option. Federal rulemaking typically includes an analysis of a “status quo” option, in addition to several new management options based on feedback received during development of the rule. In this case, that feedback would come from the Take Reduction Team, NMFS scoping meetings held during the summer of 2019 and the draft plans submitted to NMFS by the states.
In the federal court case this summer, NMFS gave a strong indication that the plans submitted by the states have been included as part of the management alternatives in the Proposed Rule. Jennifer Anderson of NMFS wrote in a June court declaration, “Once all the states’ proposed measures were known, NMFS was able to analyze the expected conservation benefits from them, and was able to determine the measures to include in the federal rulemaking to accomplish the necessary conservation benefits for North Atlantic right whales. The agency was then able to draft proposed regulations, draft a DEIS, and conduct analysis pursuant to Section 7 of the Endangered Species Act on the operation of the federal fisheries with the new management measures.”
Based on this, Maine lobstermen should expect to see at least one alternative that includes the DMR plan or is at least based in large part on the DMR plan. DMR’s plan proposes significant increases in the minimum traps per trawl along the coast based on distance from shore, and the inclusion of one or two weak points incorporated into the vertical lines. DMR has been working with the zone councils this summer to explore conservation equivalencies to tweak this approach to better fit the needs of each zone.
DMR conducted significant outreach with the industry to draft its proposal, including three meetings in March to brainstorm potential options, seven meetings in June to get industry feedback on “strawman” proposals that included trap reductions and trawling up measures, and three meetings in November to get input on the revised draft proposal for submission to NMFS that included trawling up and weak points. Well over 1,000 lobstermen attended these meetings.
While DMR’s plan is based on a great deal of industry input, it has been met with mixed reviews. The MLA voted not to support the plan because it seeks reductions that exceed the documented risk posed by the Maine lobster fishery as demonstrated in MLA’s analysis, which shows a low incidence of right whale entanglement in Maine lobster gear.
But beware … If you don’t like any given proposal, it is likely that you will like the alternatives even less! The environmental groups have pushed for more extensive use of weak rope, seasonal closures, and ropeless fishing, so it is certainly possible that any of these management strategies could be included in alternatives in the draft rule.
Ultimately NMFS will select one of the alternatives as its “preferred alternative” for the whale plan. The selection will be based on an assessment of risk reduction, as well as a thorough analysis of the economic, safety, operational impacts of each proposal.
I am certain that there will be many objections raised over the alternatives presented in the whale plan. The MLA remains very concerned that NMFS’s 60% risk reduction target overstates the risk the Maine lobster fishery poses to right whales; we will continue to highlight that issue. The industry, however, must work together to review the alternatives in the Proposed Rule with an eye toward minimizing operational, safety and economic issues. Remember, if new rules are not finalized by May, the lobster fishery can be shut down.
There will be a 75-day comment period for the Maine lobster industry to provide NMFS feedback on the Proposed Rule. It is crucial that we work collectively to ensure that the Final Rule supports all Maine lobstermen – the small boats and the big boats, the inshore fleet and the offshore fleet, the kids, the young guys and the old guys, and those who fish Downeast, in the midcoast and in southern Maine. The future of the Maine lobster fishery depends on all sectors of our fishery being able to continue to fish safely, efficiently, and profitably.
As always, stay safe on the water.